Employment Equity Act And Unfair Discrimination
Is the “same work, same pay principle” unfair discrimination?
The Employment Equity Act, Act 55 of 1998 (EEA) makes provision for employment equity and matters incidental thereto. Section 6(1) of the EEA deals with the prohibition of unfair discrimination. According to this section, no person may discriminate directly or indirectly against an employee on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth or on any other arbitrary grounds.
Section 6(2)(b) highlights what will not be considered unfair discrimination:
- Affirmative action measures which are consistent with the purpose of the act; and
- Distinguishing, excluding or preferring any person based on the inherent requirements of the job.
The latter seems to indicate that an employer may choose to afford an employee with a better qualification better terms of employment than another employee appointed on the same job description if the inherent requirement of the job is a certain qualification. This is, however, only partly true as section 6(4) of the EEA also brings in other factors to be considered before making such a distinction between employees.
Section 6(4) of the EEA reads:
“A difference in terms and conditions of employment of employees with the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in Subsection (1) is unfair discrimination”. This is often referred to as the same work, same pay principle.
The qualification criterion referred to above was one of the points of contention in National Education Health and Allied Workers Union obo Sinxo and Others versus Agricultural Research Council 2017 CCMA (26 January 2017). A group of employees, with only a grade 12 qualification, who had already been employed for a number of years were paid less than more recently appointed employees with a tertiary qualification. Although the employer argued that there was a difference in the duties and responsibilities of the two groups of employees, the Commission found that, irrespective of the qualification, the work performed by these two groups was substantially the same and that the less qualified employees were being discriminated against. The Commission also found that although qualifications can be a valid reason for a difference in remuneration, it does not automatically make such a distinction rational and fair. Qualifications cannot be the only factor considered when deciding on remuneration.
Although there might be merit in considering better terms of employment for a better qualified employee, employers are advised to make a clear distinction between the roles, duties and responsibilities of employees by having basic job descriptions in place. Having these aligned per employee will help to justify the different terms of employment, including remuneration.
About our author: Audrey Cloete obtained her LLB degree from the North-West University Potchefstroom in 2003. She completed her articles with the main focus on Criminal Law and is also an admitted Conveyancer. Audrey joined SERR Synergy in 2015 where she currently works as a Legal Compliance Advisor.